Mandamus cannot be issued against officials for actions settled by the Supreme Court once those officials have retired; prior court orders concerning wildlife protection must be adhered to.

JUDGMENT :

HARISH TANDON, CJ.

1. The present public interest litigation (PIL) is filed by the petitioner for issuance of a writ of mandamus upon the opposite parties to maintain permissible water level as approved by the Government of India i.e. 350.60 metre of Full Reservoir Level of Upper Jonk Irrigation Project, Patora and ensure the strict adherence thereto. A further writ of mandamus is sought to initiate an action against the officers of Irrigation Department having involved in the afforestation activities in complete violation of the order passed by the Supreme Court on 19^th February, 2008 and the various provisions of the Forest Conservation Act as well as the Wildlife Protection Act.

2. The petitioner has raised a concern on raising the height of the Patora dam under Upper Jonk Irrigation Project, Patora without adhering to the norms, procedures and the provisions of law applicable in this regard. It is alleged that the officials of the Irrigation Department have surreptitiously taken a decision to increase the height of the dam, which invited submerging of a large tract of forest land thereby rendering the wildlife in danger.

3. Since the concern was shown over the preservation and/or protection of the wildlife and also the ecological imbalance that would be brought, orders were passed in the instant PIL directing the State as well as the Union of India to disclose their respective stands in this regard. On the last occasion, the order was passed directing the Union of India to disclose whether the application filed by the State seeking further permission is still pending or disposed of. Both the State and the Union of India have come up with the affidavits disclosing the state of affairs concerning not only the raising of the height of the dam but also the action to be taken against the officials of the Irrigation Department as well as the diversion of 142.699 hectares of forest land for the irrigation purposes. The affidavit filed by the Union of India is taken on record.

4. The conjoint reading of the stands taken by the Union of India and the State in their respective affidavits discloses the fact that an identical issue was raised before the apex Court in a Suo Motu Public Interest Litigation ( Centre For Environment Law, WWF-I v. Union of India and others being Writ Petition (Civil) No.337 of 1995), wherein interlocutory applications were filed raising the identical issues being I.A. Nos.2 & 92 and 27 of 2008. The apex Court on 6^th February, 2008 took up those applications and showed its concern on the construction of an irrigation dam near Sunabeda Wildlife Sanctuary, which invited the submergence of 339.253 hectares of forest land. The Supreme Court also took note of the raising of the height by 3.5 metres on the decision taken by the officials of the Irrigation Department, which submerged an additional area of 142.62 hectares of the forest land in water. The apex Court after noticing the aforesaid fact that because of the construction of a dam and raising of its height resulted into submergence of large tract of forest land. It was additionally observed that the action should be taken against those erring officers and they should be prosecuted under the provision of law. However, it was pointed out before the apex Court that to compensate the forest land having submerged because of the construction of an irrigation dam in the Sunabeda Wildlife Sanctuary, the State Government has made available 575 hectares of land to the Forest Department for afforestation and have also paid compensation of Rs.35.14 lakh